Excerpt: ...0, the Court is to consider several factors: (1) whether the moving party selected the forum; (2) whether the deponent will be present to testify at trial; (3) convenience of the deponent; (4) feasibility of conducting the deposition by written question or by use of some other method; (5) number of depositions in the action taking place at a distance further than permitted under C.C.P. §2025.250; (6) the expense of the parties requiring the depo...

Excerpt: ...n of the Consumers Legal Remedies Act (CLRA). Defendant Ford and defendant Fritts (collectively “Defendants”) move for judgment on the pleadings as to each cause of action. As discussed below, the Motion for Judgment on the Pleadings is denied as to the first, second, third, fourth and fifth causes of action and granted with 20 days leave to amend as to the sixth cause of action. “A motion for judgment on the pleadings performs the same fun...

Excerpt: ...ust prove that she is a bona fide investor of the LLC (as opposed to a mere conduit for other investors), and the documents regarding the source of Shi's contributions must be produced. This argument is unpersuasive and lacks merit. This lawsuit was brought by Plaintiffs to recover their investment in the LLC that they allege Lee misappropriated for himself and ousted Plaintiffs from their interests in the LLC. Plaintiffs allege a failed joint ve...

Excerpt: ...s, Inc., (collectively “Plaintiffs”) raised a triable issue of material fact as to Issue I, UMF No. 25, and Issue II, UMF No. 25. Burden: A defendant meets its burden in a motion for summary judgment or summary adjudication by doing one of the following: (1) presenting affirmative evidence negating an essential element of plaintiff's cause of action; (2) showing a complete defense; or, (3) showing that plaintiff does not possess and cannot re...

Excerpt: ...exchange by all parties of a list containing the name and address of any natural person, including one who is a party, whose oral or deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial.” (C.C.P. § 2034.210(a).) C.C.P. § 2034.210 anticipates a simultaneous exchange by all the parties. Plaintiff Ms. Bozner cites to no authority that she can be excluded from such an exchange. Because the form...

Excerpt: ...er of an injured worker for any injury that it within the scope of workers' compensation coverage (Lab. C. §3602(a)). If a complaint affirmatively alleges facts indicating coverage by the workers' compensation laws and fails to allege additional facts negating application of the exclusive remedy principle, no civil action will lie and the complaint is subject to demurrer (Colombo vs. State of California (1991) 3 Cal. App. 4th 594, 599). An emplo...

Excerpt: ...arty. Defendant Long Ngoc Phan DMD, Inc., fails to cite to any portion of HIPAA to support that the subject information is protected by HIPAA. HIPAA protects the handling of personal medical information and provides privacy standards for said information. Brown v. Mortensen (2011) 51 Cal.4th 1052, 1066. Under 45 CFR § 160.103, “health information” is defined as any information that is created by a healthcare provider and relates to “the pa...

Excerpt: ...ce, and either partner may claim the privilege. (People v. Dorsey (1975) 46 Cal.App.3d 706, 717.) A communication is presumed to have been made in confidence in the course of a marital partnership, and the opponent of the privilege has the burden to establish that it was not confidential. (Evid. Code § 917.) The County fails to demonstrate that the communications were not privileged. Further, the questions invade the privacy associated with the ...

Excerpt: ...tion of an alleged debt by filing the lawsuit. (Cross‐Complaint, ¶58‐61.) As such, liability is based on the filing of the Complaint. This protected activity is not merely incidental or collateral to the abuse of process and Rosenthal Act violation claims. Cross‐Defendants do not concede their actions were illegal. Jon Lieberg indicates that in 2009, he entered into an oral agreement to represent Cross‐Complainant, Gary and other entitie...

Excerpt: ...e all currently scheduled hearing dates and discovery deadlines. It argues that the Burnell case involves the same PAGA claims as this case and that the Settlement subsumes all claims on behalf of the State of California and all Aggrieved Employees. Defendant contends this case will be barred once the settlement is approved and judgment is entered by the District Court. Plaintiff argues that Defendant has not established that the PAGA claims asse...

Excerpt: ...se of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike, at least 5 days before the responsive pleading is due. (CCP § 430.41(a), § 435.5(a).). The moving party is then required to file a declaration stating either 1) the means by which the parties met and conferred and that the parties did not reach an agreement or 2) that the party who filed the pleading subject ...

Excerpt: ...363(i) provides in pertinent part: Notwithstanding Section 3517.8 or any provision of an expired memorandum of understanding, this section shall apply to a state peace officer/firefighter member who is employed by the state for the first time and becomes a state peace officer/firefighter member of the system on or after January 15, 2011, and is represented by State Bargaining Unit 6 or 7. Section 21363.8 provides a 3% at 50 years of age, and appl...

Excerpt: .... (1992) 2 Cal.4th 1035, 1040; Parker v. Walker (1992) 5 Cal.App.4th 1173, 1190; Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 831.). The Second Amended Complaint provides a sufficient explanation of any alleged inconsistencies with the prior pleadings. Thus, it is not subject to the sham pleading doctrine. Although there is no appreciable difference between the fifth and sixth causes of action for fraud and false promise, the Second Amended...

Excerpt: ...ormation and Certification of Dissolution for CSJ and Ohio Secretary of State Agent/Registrant Information and Certificate and Application for License for CSJ. These documents may be judicially noticed pursuant to Evid. Code §452(c) as public records filed with the Secretary of State. (Cody F. v. Fattetti (2001) 92 Cal. App. 4th 1232, 1236, FN 2.) The requests for judicial notice of these documents is granted. Plaintiffs also request judicial no...

Excerpt: ...of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) Defendants' “moot” argument is irrelevant because Defendants are going beyond the pleadings or judicial notice. On the merits, there is currently a split of authority on the issue. In two cases, courts have held that the damages cap is $500 per action, and not violation. (Nevarrez v. San Marino Skilled Nursing and Wellness Centre (...

Excerpt: ...e parties submitted a Joint Stipulation/Order to Continue the hearing again, and it was continued to 5/30/19. That Stipulation indicated that both parties planned on conducting extensive additional discovery. According to the 4/16/19 Joint Status Report, the parties believe that resolution of the issues presented in this motion will facilitate a settlement. The Court declines to consider any of papers filed after 3/6/19. The 3/6/19 Reply papers (...

Excerpt: ... LLC (2007) 152 Cal.App.4th 1106, 1117‐1118.) The Court notes that Plaintiffs improperly attached exhibits to their Opposition. The exhibits appear to be the same documents as those attached to the Second Amended Complaint. First Cause of Action for Intentional Misrepresentation: The cause of action was sustained in the Demurrer to the First Amended Complaint. Plaintiffs have made no substantive changes. Second Cause of Action for Negligence: T...

Excerpt: ...GRANTED. (Evid. Code § 452(c).) Evidentiary Objections: Defendant's evidentiary objections are OVERRULED as to numbers 1 and SUSTAINED as to numbers 2 ‐ 5. RULING PAGA Claim: Defendant argues, and Plaintiff does not dispute, that the Federal Arbitration Act (FAA) (9 U.S.C. §§1 et seq.) applies to this case. Zakaryan v. The Men's Wearhouse (2019) 33 Cal.App.5th 659 (“Zakaryan”), Williams v. Superior Court (2015) 237 Cal.App.4th 642 (“Wi...

Excerpt: ...ue and are not pled with particularity. It is not clear how Cambridge or its staff caused the bedsores, which may have resulted from ordinary negligence rather than recklessness, malice or oppression. Furthermore, improper monitoring may constitute professional negligence rather than elder abuse. (Carter v. Prime Healthcare Paradise Valley LLC,supra, 198 Cal. App. 4th at 411.) As currently pled, Plaintiffs have not stated facts with sufficient sp...

Excerpt: ...rga failed to meet his initial burden. (The Court notes the spelling of Michal Murga's first name.) On the Third Amended Cross‐Complaint, Michal Murga failed to address the 2nd ‐ 5th causes of action, and therefore, summary judgment is improper. The Court treats this solely as a Motion for Summary Adjudication on the 1st cause of action for partition, which the Court denies as premature in light of the pending quiet title claim. The Court not...

Excerpt: ... the burden and allows Plaintiff to determine whether the forms were provided to each employee and whether the employees signed the forms acknowledging the policy. Therefore, Defendant is Ordered to produce, within 30 days, responsive documents for a random sample of 15% of the employees described in the RFP. RFP No. 2: Please provide each and every earning statement (paystub), copy of check and pay detail for each pay period along with the compl...

Excerpt: ...join Defendants “from transferring, conveying, selling, distributing, paying, liquidating or otherwise disposing of any income or assets in their possession and, in addition, are prohibited from starting, forming, or otherwise creating an entity or other business to carry on or conduct the business of CSJ Services, Inc.” Defendants contend that there is no irreparable harm since Plaintiffs already have a judgment. They also argue that this Co...

Excerpt: ....4th 764, 774.) The North American Court stated: “A contract to perform services gives rise to a duty of care which requires that such services be performed in a competent and reasonable manner. A negligent failure to do so may be both a breach of contract and a tort. (Citations omitted.) In such a hybrid circumstance, the plaintiff is entitled to pursue both legal theories until an occasion for an election of remedies arises.” (Ibid.) This i...

Excerpt: ... Cal.App.3d 749, 754.) Petitioner does not dispute she was ineligible for benefits she received from January 20, 2014, through July 29, 2014. Even after reducing her part‐time income by 25 percent, as required by Unemployment Insurance Code section 1252, Petitioner's income of at least $455.17 weekly exceeded her benefits of $256 each week. Under section 1252, Petitioner was not eligible for the unemployment benefits she received. Respondent al...

Excerpt: ....4th 764, 774.) The North American Court stated: “A contract to perform services gives rise to a duty of care which requires that such services be performed in a competent and reasonable manner. A negligent failure to do so may be both a breach of contract and a tort. (Citations omitted.) In such a hybrid circumstance, the plaintiff is entitled to pursue both legal theories until an occasion for an election of remedies arises.” (Ibid.) This i...

Excerpt: ...ist for revocation of the agreement; or, litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. CCP §1281.2. “[W]hen a plaintiff alleges a defendant acted as an agent of a party to an arbitration agreement, the defendant may enforce the agreement even though the defendant is not a party thereto.” Thomas v. Westlake (2012) 204 Cal.App.4th 605, 614. The complaint asserts that the defen...

Excerpt: ...ng repurchases for the same vehicle type and defect (no. 30); documents regarding complaints of the same vehicle regarding the same defect (no. 31); and surveys, summaries, reports and documents regarding owners of the same vehicle regarding the same defects. Plaintiff has shown good cause as they relate to the buyback policies, which are relevant for a Song‐Beverly claim. Civil Code § 1794(c), authorizes a civil penalty in lemon law cases “...

Excerpt: ...iability, such as and knowledge of defects and unauthorized sales. Other requests involve subsidiary liability and entities that are not named in the First Amended Complaint, such as LG Chem Michigan. The ownership of a subsidiary does not subject a nonresident parent company to personal jurisdiction based on the subsidiary's forum contacts unless the parent company deliberately directs the subsidiary's activities in the forum state. (HealthM...

Excerpt: ...isayans”). On 5/5/2018, counsel for all defendants withdrew as counsel, explaining that his clients were not cooperating or meeting with him. On 9/5/2018, the Court granted Plaintiffs' unopposed motion to strike the answers of the Entity Defendants which were no longer represented by counsel. The Sisayans are acting in pro per and have been without counsel since 5/5/2018. Plaintiffs move for terminating sanctions for the Sisayans' failure to co...

Excerpt: ...isayans”). On 5/5/2018, counsel for all defendants withdrew as counsel, explaining that his clients were not cooperating or meeting with him. On 9/5/2018, the Court granted Plaintiffs' unopposed motion to strike the answers of the Entity Defendants which were no longer represented by counsel. The Sisayans are acting in pro per and have been without counsel since 5/5/2018. Plaintiffs move for terminating sanctions for the Sisayans' failure to co...

Excerpt: ...intiff's allegations that she requested reasonable accommodation and/or that FMK failed to engage in the interactive process do not demonstrate opposition to or protest of unlawful conduct by FMK sufficient to support a claim for whistleblower retaliation. Plaintiff's complaints about her alleged mistreatment by Vela are not whistleblowing, but appear to be more akin to a disclosure made in the context of an internal personnel matter. (Levi v. Re...

Excerpt: ...nication was made for a purpose other than the realization of a litigation objective, the litigation privilege does not apply. A corporation can lose the right to its name during a period of suspension, necessitating a name change before reviver. (Boyer v. Jones (2001) 88 Cal. App. 4th 220, 225.) A suspended corporation is disqualified from exercising any right, power or privilege including the right to hold a corporate name and prevent others fr...

Excerpt: ...ack. Plaintiffs allege (FAC §23) that FORD knew about and concealed the Engine Defect in Plaintiffs' vehicle, and instead of repairing the defects, performed superficial and ineffectual repairs that simply masked the symptoms; that FORD actively concealed the existence and nature of the defect from Plaintiffs at the time of purchase, repair, and thereafter (§40); that FORD had dealers implement a “BandAid” strategy that allowed limited repa...

Excerpt: ... for the subject pipeline. In its original 8/03/18 Application and 8/10/18 Amended Papers, EMWD presented evidence (the Declarations of Joe Mouawad) of how it had the potential to be harmed should EXETER be allowed to continue covering the easement with fill dirt as it constructed its project (additional efforts, monies, and expenses would be required to access and maintain the pipeline if it remained at the 16‐18 foot depth under EXETER's addi...

Excerpt: ...of the pleading. (See Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1341.) Court grants the motion as to the fourth cause of action, without leave to amend. (People for Ethical Treatment of Animals, Inc. v. California Milk Producers Advisory Board (2005) 125 Cal.App.4th 871, 878–879 (PETA).) For the first and second causes of action, judicial abstention is appropriate when the plaintiff requests relief that requires the trial c...

Excerpt: ...at three attorneys prepared the anti‐SLAPP motion, Mr. Tarwater at $240 per hour, Mr. Clifford at $400 per hour, and Mr. Cooper at $290 per hour. Those hourly rates are reasonable. However, the Court reduces the time allotted to each attorney as follows: Mr. Tarwater to 10 hours; Mr. Clifford to 3 hours; and, Mr. Cooper to 4 hours. Only costs specifically and reasonably related to the anti‐ SLAPP motion are recoverable. Costs for courier serv...

Excerpt: ...hich is credible given that Sunrise was suspended in 2014). (Sunday Dec., ¶ 8; Wilson Dec., ¶¶ 5, 8.) In support of alter ego liability, Plaintiff submits his own declaration stating that Sunday and Wilson disregarded Sunrise's corporate form to commit fraud, commingled funds with Sunrise, failed to maintain minutes or corporate records for Sunrise, and that Sunrise was undercapitalized from its inception. These statements lack foundation, are...

Excerpt: ...dence.” (Dec.Erving ¶11.) Petitioner's objection to this statement on grounds of lack of foundation, and lack of personal knowledge is sustained. Petitioner's IPA requests sought broad categories of documents and the purpose of the Petition was to obtain documents responsive to Petitioner's IPA requests. The Regents located documents presumably related to Petitioner (otherwise there would not have been a reason to identify them on the privileg...

Excerpt: ...and the Court grants the request as to those items. As to judicial notice of the contract, the Court denies the request. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194 (quoting Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063‐1064. Post v. Prati (1979) 90 Cal.App.3d 626, 633.) Plaintiff's requests judicial notice: Plaintiff requests judicial notice of his claim and the denial of it. City does not object and...

Excerpt: ...le by him.” (Loughrin v. Superior Court (1993) 15 Cal.App.4th 1188, 1195.) It does not protect against intentional misrepresentation, fraudulent concealment or negligent concealment not related to the failure to inspect. (Id.) Additionally, the use of an “as is” provision does not protect from the statutory disclosure requirements. (Id.) While some of the alleged conditions may be observable by an inspection, it is not clear on demurrer whe...

Excerpt: ...from recovering money damages. The plaintiff argues that section 844.6 limits claims for physical injuries only. However, courts have applied that section to cases that involved claims other than physical injuries. (See Towery v. State of California (2017) 14 Cal.App.5th 226, 237; Wright v. State of California (2004) 122 Cal.App.4th 659, 672.) Motion for summary adjudication denied as to claim for injunctive relief. Although the defendant may hav...

Excerpt: ...th 528, 535.) Mr. Chu states that he inspected the property prior to leasing it to Lost and Found (Decl. of S. Chu, ¶7). He does not state that the raised lip was not present during the inspection. Mr. Chu concludes that there were no dangerous conditions on the premises at the time of inspection (Ibid). However, if reasonable minds could differ on whether a condition is dangerous, it is a question of fact for the jury. (Fielder v. City of Glend...

Excerpt: ...su and Defendants. The FAC does not set forth the existence of a contract on behalf of JBN. (FAC, ¶¶ 20‐21, 25‐26.) To the extent that Hasu seeks to recover individually under the second cause of action for services performed, he has not alleged that he was a licensed contractor, and to the extent that he asserts that he simply footed the cost of the remodel, the allegations are unclear. Further, the FAC does not adequately explain the disc...

Excerpt: ...h there is no pending foreclosure, given that Plaintiff is in default and there is no stay or loan modification, there is a reasonable potential that Defendant will restart the foreclosure process. Plaintiff's allegations that he was not provided a single point of contact are sufficient for pleading purposes. Whether the allegations are true cannot be decided on demurrer. (FAC, ¶¶49‐62.) Second cause of action for violation of CC section 2923...

Excerpt: ...ecause defendants did not act outside the role of a conventional lender and there are no facts alleged to the contrary. The demurrer is sustained with 20 days leave to amend as to the first, second, fourth, and sixth causes of action. As to the first cause of action, plaintiff improperly combines two claims, one under Civil Code section 2924(a)(6) and the other under Civil Code section 2924.11, both of which fail to allege facts sufficient to con...

Excerpt: ... (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) Thus, Defendants' mootness argument (penalty paid) is irrelevant. Defendants are going beyond the pleadings or judicial notice. There is currently a split of authority. In two cases, courts have held that the damages cap is $500 per action, and not violation. (Nevarrez v. San Marino Skilled Nursing and Wellness Centre (2013) 221 Cal.App.4th 102, 135; Lemaire v. Covenant Care Calif...

Excerpt: ...pitalist) The Court considered Defendant's contention that Dr. Klein is necessary, as the negligence of the hospital staff remains an issue. Plaintiffs did not make any argument as to why Dr. Klein's testimony is duplicative or unwarranted and the motion is denied as to this expert. Dr. David Karlin (Radiologist) and Dr. Lynn Connolly (Gastroenterology) The Court considered Defendant's contentions that these experts are necessary to address and d...

Excerpt: ... a requirement under the present facts which would require the lender or servicer to consider plaintiffs' intent to pay off the first loan on the property. (See Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1096; See also Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 68 [refusing to impose a common law duty to offer or approve a loan modification, after reviewing the Biakanja factors (Biakanja v. Irving...

Excerpt: ...economic loss when its money is unlawfully diverted for defendant's personal benefit, even if the misappropriation resulted in public benefits such as public building improvements. (Ibid.) Page 3 of 5 1 st and 2nd causes of action (fraud and fraudulent concealment) Plaintiff alleges that “Kapanicas communicated to Plaintiff several false reasons . . . for the City's failure to remit TUMF funds to Plaintiff at meetings with staff for Plaintiff t...

Excerpt: ...n an application for an order has been made to a judge or to a court, and refused in whole or in part, granted, or granted conditionally, or on any terms, any party affected by the order, within 10 days of service upon the party of written notice of entry of the order and based upon new or different facts, circumstances or law, make application to the same judge or court to reconsider the matter and modify, amend, or revoke the order. A party who...